QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|APPLICATION TO QUASH|
|SECTION 288 TOWN AND COUNTRY PLANNING ACT 1990|
|(1) THE FIRST SECRETARY OF STATE|
|(2) BARNET LONDON BOROUGH COUNCIL||(DEFENDANTS)|
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190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR DAVID FORSDICK (instructed by The Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the 1st DEFENDANT
Crown Copyright ©
"Foley Court comprises of a brick- built four- storey block of flats located at the junction of Nether Street and Birkbeck Road in the Finchley area of the Borough. The first three floors of accommodation are broadly similar in form."
He then describes the nature of the six flats contained in the first three floors. The decision letter continues:
"No 7 consists of a two- bedroom flat on the fourth floor. It occupies just the western side of the building and has a box- like appearance under a parapet roof. The fenestration is somewhat different from the remainder of the apartments."
"A number of alterations are proposed to Flat 7 in order to reduce its visual impact in the street scene and to address the detailed criticisms made by the last Inspector in 1998. They comprise: (a) a reduction in the height of the building by 1m throughout reducing the floor- to- ceiling height from 2.6m to 2.2m and by removing the 600mm tall brick parapet; (b) conversion of the external walls to a 'mansard' roof appearance, clad with slates; (c) insertion of patio doors and balcony railings in the rear (south) elevation to align with those in the three floors below; (d) replacement of brick piers around the roof terrace with railings; and (e) insertion of two additional landing windows in the front elevation at first and second floor levels."
"The appeal premises occupy a prominent site at the junction of two roads. Travelling towards the appeal site along Nether Street in either direction from its junctions with Gainsborough Road and Ballards Lane, Flat 7 stands out harshly against the skyline. When viewed from the west that effect is highlighted by the gradient of Nether Street. Seen from that direction the development competes with and obscures views of the adjacent church tower. Looking along the length of Birkbeck Road from the junction with Hutton Grove the effect is equally severe with the rear elevation of the appeal premises rising above the roofs of neighbouring dwellings. The unit has all the appearance and attraction of a rectangular brick box placed, in my view, rather ungainly on top of Foley Court. I give little credence to the argument that Foley Court is today an established part of the street scene ... In its present condition I believe Flat 7 to have a severe adverse impact on both the Nether Street and Birkbeck Road street scenes which, in general, are characterised by architecture of a more domestic scale and appearance."
The Inspector then went on to consider what the effects of the proposed alterations would be. He said this:
"I accept that the external alterations now proposed to Flat 7 represent an improvement over the existing situation. A reduction in the height of the building by 1m, its cladding with slates to create the appearance of a 'mansard' roof, and the removal of brick piers around the perimeter supporting the metal balustrade will all help in a fairly modest way to reduce its visual impact. Moreover, changes to the fenestration to improve the symmetry of the fourth floor elevations to make them relate better to the rest of the building would create a more balanced and inclusive appearance, less jarring to the eye. However, the basic underlying design objection would remain. That relates to the actual and perceived bulk of the scheme. It would not, in my view, be adequately addressed by these measures, many of which are fairly cosmetic in nature."
In paragraph 13 he concluded:
"My site inspection confirms that even after the works proposed are carried out, the bulk of Flat 7 would still be highly visible from both Nether Street and Birkbeck Road, breaking the skyline and soaring over neighbouring buildings. It would remain an unduly obtrusive feature at this very prominent corner location, out of scale and keeping with the character and appearance of its domestic surroundings. Such a building mass, albeit somewhat reduced, would I believe continue to harm the street scene. That adverse impact would not be outweighed by the benefit to the housing stock of maintaining an existing dwelling unit in an area where there is pressure on housing accommodation. I find the appeal proposal to be in conflict with the aims of the development plan, emerging planning policies and the design advice set out in PPG1 that together seek to ensure that the buildings respect and harmonise with the scale and form of surrounding development."
Under the heading "Other Matters" the Inspector said:
"I have taken into account all of the other matters raised in the representations including the minor visual improvements that would result from the amended on- site parking arrangements ... and the encouragement given by PPG3 to higher densities and maximising the development potential of brownfield sites. I have also had regard to comments made by the Finchley Society at application stage who considered the appeal scheme to offer a realistic compromise, together with the lack of objections from local residents and others. But neither these nor any other matters brought to my attention outweighed the considerations which lead me to my overall conclusions."
Those overall conclusions were:
"I conclude that the physical alterations proposed are insufficient to overcome the serious harm that the retention of Flat 7 would cause to the character and appearance of the area."
Consequently the Inspector saw a clear conflict with policies in the UDP and with emerging planning policies and he therefore dismissed the appeal.
"(i) failing to have regard or sufficient regard to the evidence before him concerning the alterations to the appeal property in that he failed to consider the fact that the Second Defendant had failed to supply him with any fresh evidence supporting their refusal to grant planning permission. The only evidence submitted to the Inspector was historic dealing with previous applications and appeals at the appeal site
(ii) failing to have regard or sufficient regard to the evidence before him namely that the modified plans have the support of the Finchley Society, which considered that this plan was a 'real attempt to find an acceptable compromise and the Finchley Society does not [in] all the circumstances object to it';
(iii) failing to have regard or sufficient regard to the evidence before him namely that sixteen local residents had been consulted about the proposal and that save for the Finchley Society no objections had been received;
(iv) failing to have regard or sufficient regard to the First Defendant's Inspector's concerns in his decision letter dated 15th June 199 and the fact that the Claimant had dealt with many of his concerns through the alterations submitted in the current application;
(v) failing to have regard or sufficient regard to the fact that the appeal property does exist in a street scene along with other buildings of similar height;
(vi) failing to have regard or sufficient regard to the fact that the property has been in its present form for fourteen years and has become part of the street scene;
(vii) failing to have regard or sufficient regard to the extensive modifications to the property proposed by the Claimant;
(viii) wrongly concluding based upon insufficient evidence that many of the modifications proposed by the Claimant were 'fairly cosmetic in nature';
(ix) wrongly identifying as a major issue and placing undue weight upon the fact that the other buildings of a similar height are institutional in nature;
(x) wrongly identifying as a major issue and placing undue weight upon the history of the building and failing to consider the matter in isolation."
There is an alternative suggestion that the Inspector failed to give adequate reasons.